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Discrimination, Harassment, and Retaliation Policy

Title: Discrimination, Discriminatory Harassment, and Retaliation Policy
Effective Date: August 22, 2014
Revision Date: August 14, 2020
Responsible Office: Compliance & Equity

Recognizing that the federal regulations were finalized May 6, 2020 with an implementation date of August 14, 2020, this policy and related procedures have been approved by the President and will take effect immediately on an interim basis. Per the Creating & Maintaining Whole University Policies & Procedures, an interim policy (or procedure) is adopted on an emergency basis when there is not sufficient time to allow for the full approval process, but such a policy or procedure can only be in effect for up to one year.  The Faculty, Professional/Professional Faculty, Staff and Student Assemblies are being provided a full opportunity to review this interim policy and related procedures and provide feedback from their respective constituents to the Office of Compliance by December 1, 2020.

I. Scope

This policy applies to William & Mary as a whole university, including the Virginia Institute of Marine Science (the university).  It applies to all members of the university community, including faculty, staff, and students.  It also applies to contractors, vendors, and other third parties. 

This policy applies to discrimination, discriminatory harassment, and retaliation by or against members of the university community when the conduct:

  • occurs on campus or property owned or controlled by the university (university property),
  • occurs in the context of a university employment or educational program or activity,
  • uses university resources, such as workplace telephones, video conferencing technology or e-mail, or
  • has continuing adverse effects on or creates a hostile environment for members of the university community while on university property or during a university employment or educational program or activity.

Officially recognized organizations, such as student organizations, are subject to this policy, provided that, to the extent permitted by law, social organizations such as fraternities and sororities may restrict membership to members of the same sex, and organizations whose primary purpose is religious or political may restrict their membership to those members of the university community who have similar beliefs or political affiliations.[1] 

This policy is not intended, and may not be applied, to abridge free speech or other civil rights of any individual or group.  Speech or any other expressive conduct can, however, be discriminatory and violate this policy, for example by creating a hostile environment as defined in Section III of this policy.   This policy is not meant to prohibit academic freedom, including classroom discussion of controversial matter and research activities. 

II. Purpose

The university is committed to maintaining an environment that is free from discrimination, discriminatory harassment, or retaliation based on a person’s belonging to or perception that a person belongs to a protected group.

Discrimination, discriminatory harassment or retaliatory misconduct by anyone is prohibited.  It will be addressed in a prompt, equitable manner in accordance with this policy and the applicable procedure.

This policy helps William & Mary comply with federal and state laws, including civil rights laws that prohibit discrimination based on race, color, national origin, sex, disability, and age including:

  • Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., implementing regulation at 34 C.F.R. Part 100 (prohibiting race, color, and national origin discrimination);
  • Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., implementing regulation at 34 C.F.R. Part 106 (prohibiting sex discrimination);
  • Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, implementing regulation at 34 C.F.R. Part 104 (prohibiting disability discrimination);
  • Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12131 et seq., implementing regulation at 28 C.F.R. Part 35 (prohibiting disability discrimination by public entities, regardless of whether or not they receive federal financial assistance);
  • the Age Discrimination Act of 1975, 42 U.S.C. § 6101 et seq., and its implementing regulation at 34 C.F.R. Part 100 (prohibiting age discrimination).

III. Definitions

Complainant means an individual who is alleged to be the victim of conduct that could constitute discrimination, discriminatory harassment or retaliation.

Discrimination means unfair treatment because of a person’s belonging to or perception that a person belongs to a protected group and the treatment:

  • adversely affects a term or condition of an individual’s employment, education, or participation in a university activity, or
  • is used as a factor in a decision affecting an individual’s employment, education, or participation in a university activity,[2] or
  • constitutes harassment that creates a hostile environment or quid pro quo sexual harassment, each as defined below.

Discrimination also includes failure to provide reasonable accommodations for a person’s disability[3] or religion[4] as required by law, or any other violation of a disabled person’s rights under applicable anti-discrimination laws.[5] The university makes modifications and adjustments to its programs and activities for qualified students with disabilities as required by law, under the Student Accommodation Policy and Procedure. The university also makes modifications, changes, or adjustments to jobs, work conditions and work environment for qualified employees with disabilities, or to the job application process for applicants, as required by law, under the Employee Reasonable Accommodation Policy and Procedure.   

Disparate Treatment means different treatment of members in a protected group from similarly situated people not in a protected group, or in the absence of comparative evidence, other direct evidence of discriminatory intent or indirect evidence that the actions were motivated by discrimination.

Disparate Impact means discrimination that occurs when policies, practices, rules or other systems that appear to be neutral result in a disproportionate impact on a protected group.

Discriminatory Harassment means unwelcome conduct based on a person’s belonging to or a perception that a person belongs to a protected group.  Harassment violates this policy when it creates a hostile environment. 

Faculty means those persons who have teaching and/or research responsibilities and who hold academic appointments in a department, program, or school of the university, as well as those administrators who hold an academic appointment in a program, school or department.

Formal complaint means a document filed by a complainant or signed by the Title IX Coordinator alleging discrimination, discriminatory harassment, or retaliation, including sexual harassment or sexual misconduct against a respondent and requesting that the university investigate the allegations.

Hostile Environment means conduct that is sufficiently severe or pervasive such that it unreasonably interferes with, limits, or deprives an individual from participating in or benefiting from the university’s education programs and/or activities.  Conduct must be deemed severe or pervasive from both a subjective and an objective perspective.  In evaluating whether a hostile environment exists, the university will consider the totality of known circumstances, including, but not limited to:

  • The frequency, nature and severity of the conduct;
  • Whether the conduct was physically threatening;
  • The effect of the conduct on the Complainant’s mental or emotional state;
  • Whether conduct was directed at more than one person;
  • Whether the conduct arose in the context of other discriminatory conduct;
  • Whether the conduct unreasonably interfered with the Complainant’s educational or work performance and/or University programs or activities; and
  • Whether the conduct implicates concerns related to academic freedom or protected speech.

Mandatory Reporter means a faculty or staff member (including some student staff such as Resident Assistants and Teaching Assistants) of the university who is obligated by federal and/or state law to share knowledge, notice, and/or reports of sexual harassment, gender-based harassment, and sexual misconduct as defined in this policy with the Title IX Coordinator.

Protected Group means category of individuals who are protected from discrimination based on race, religion, creed, national origin, color, sex, gender, sexual orientation, gender identity,  pregnancy, physical or mental disability (or perceived disability) , personal appearance, political affiliation,  source of income, citizenship status, age, marital status, family responsibilities, Veteran or military status (including disabled veteran, recently separated veteran, active duty wartime or campaign badge veteran, and Armed Forces Service Medal veteran), predisposing genetic characteristics, domestic violence victim status, height or weight.

Quid Pro Quo Harassment means the submission to or rejection of sexual conduct as a term or condition of a person’s employment, academic standing, or participation in any university education programs and/or activities or is used as the basis for decisions affecting the individual.

Report means information about alleged discrimination, discriminatory harassment, or retaliation, including sexual harassment or sexual misconduct affecting a member of the university community, including a student, that is conveyed to a mandatory reporter of the university and is communicated to the Chief Compliance Officer/Title IX Coordinator.

Retaliation is any adverse action taken by a respondent or allied third party against a person because the person made a good faith report of discrimination or discriminatory harassment, including sexual harassment or sexual misconduct, or the person is involved in or participated in an investigation or proceeding of such reported allegation under this policy or under the Policy Prohibiting Sexual Harassment, Gender-Based Harassment or Sexual Misconduct (“Sexual Misconduct Policy”).  Retaliation includes, but is not limited to, threatening, intimidating, harassing, coercing or any other conduct that would deter a reasonable person from engaging in activity protected under this policy. 

Staff means employees who are designated by Human Resources as executive, professional, professional faculty, operational, classified and non-student hourly employees and who do not hold an academic appointment in a program, school, or department.

Student means all persons taking courses at the university, either full-time or part-time, persons pursuing undergraduate, graduate, or professional studies, and persons enrolled as a non-degree seeking students. 

IV.  Policy

A. Misconduct.  The following types of conduct as defined in Section III of this policy are prohibited and a violation of university policy subject to sanctions as described in the applicable procedure:

  • Disparate Treatment Discrimination
  • Disparate Impact Discrimination
  • Discriminatory Harassment
  • Quid Pro Quo Harassment
  • Retaliation

B. Retaliation Separate from Discrimination or Discriminatory Harassment. Separate disciplinary action shall be imposed if there is a finding of responsibility for retaliation.   Retaliation may be present even where there is a finding of “no responsibility” on the allegations of sexual or gender-based harassment or sexual misconduct. Retaliation does not include good faith actions lawfully pursued in response to a report of sexual or gender-based harassment or sexual misconduct or adverse actions taken for legitimate non-discriminatory purposes (e.g. employee discipline for tardiness, student honor code charges for separate plagiarism incident). 

C. Discriminatory Harassment Standards

The university’s harassment policy is not meant to inhibit or prohibit educational content or the open exchange of ideas inside or outside of the classroom that include relevant or useful concepts and personal beliefs or opinions.  Controversial or sensitive subject matters are protected by academic freedom and freedom of speech. Mere words or expression of a belief or opinion that some person finds offensive, standing alone, is not a sufficient basis to establish a hostile environment under the statutes enforced by this policy [6]

Conduct that substantially interferes with a student, staff or faculty member’s access to education or employment, causes physical or mental harm, or threatens physical or mental harm is considered discriminatory harassment under university policy. In order to find someone in violation of discriminatory harassment, the harassment must create a hostile environment.  A hostile environment is established if the harassment is determined to be sufficiently serious (i.e., severe, persistent or pervasive) as to limit or deny a person's ability to participate in or benefit from an educational or employment program.   Conduct alleged to substantially interfere, cause physical or mental harm or threatens physical or mental harm will be evaluated from the perspective of a reasonable person in the alleged victim’s position, considering all the circumstances.  Conduct that does not yet rise to the level of a hostile environment can be addressed without imposing punishment to inform the individual that if the conduct continues, it may create a hostile environment.   

IV.  Reporting Discrimination, Discriminatory Harassment or Retaliation

A. When to Make a Report

The university can fulfill its ethical commitment to create a non-discriminatory environment and its legal obligations to address discrimination that occurs only if allegations and complaints are brought to the attention of a designated university officer.  In addition, there are state legal requirements to report sexual violence – these requirements are described in this Section III and do not apply to victims of violence.[7]  To meet these ethical and legal commitments, William & Mary encourages, and in certain situations requires, members of the university community to inform the proper authorities of discrimination and retaliation.  

If a member of the university community has been discriminated and/or retaliated against, we encourage them to report the misconduct, but he or she is not required to make a formal complaint for investigation.  In no case is a person who has been discriminated or retaliated against or harassed required to report. 

In order to encourage reporting, the university does not discipline community members who report misconduct and any material witnesses for behavior that would otherwise be considered a violation of university policy (such as consuming alcohol underage or consuming illegal drugs).

B. How to Make a Report

Reports may be made online at:

Employee Online Reporting Form (coming soon) to report any allegations of discrimination, discriminatory harassment or retaliation, including Title IX sexual harassment by a faculty, staff or third-party contractor or guest of the university

Student Title IX Report Form to report allegations of sexual harassment, gender-based harassment or sexual misconduct by a student

Student Incident Report to report allegations of other discrimination, discriminatory harassment or retaliation by a student

A report may always be made directly to the Chief Compliance Officer at:

Pamela Mason J.D., CCEP
Chief Compliance Officer
109 James Blair Hall
William & Mary
Williamsburg, VA 23185
757-221-2743
reportconcern@wm.edu

 

C. Mandatory Reports

There are two mandatory reporting situations in which an employee who has information about discrimination or harassment must share that information with the Chief Compliance Officer or Deputy Chief Human Resources Officer 

  1. Faculty, supervisors, and managers must report all discrimination and retaliation of an employee who reports to them directly or indirectly.  Faculty and staff with supervisory or managerial responsibilities (including all executive employees) who are told of, become aware of, or witness discrimination or retaliation of a subordinate employee in their line of supervision are required to file a report with the Chief Compliance Officer or Deputy Chief Human Resources Officer.    For example, if a faculty or staff member complains of or reports discrimination to a supervisor, or if a supervisor witnesses or becomes aware of an incident or situation that a reasonable person would understand to be retaliation, the supervisor is obligated to inform the appropriate university office or officer.    The faculty member, supervisor or manager should not investigate the matter themselves.  If the supervisor knows that the matter has already been brought to the attention of the appropriate university office or officer, the supervisor does not need to report it.
  1. Faculty and staff, including designated student staff are mandatory reporters and must file a report with the Title IX Coordinator of any sex-based discrimination, sexual harassment, gender-based harassment, or sexual misconduct affecting a member of the university community including faculty, staff or students.  An employee designated as a mandatory reporter (formerly a “responsible employee”) who becomes aware of complaints or reports of sex-based discrimination, including sexual harassment or sexual misconduct as defined in the Sexual Misconduct Policy, that affects a member of the university’s community must promptly report the Title IX Coordinator via the online form or via email at reportconcern@wm.edu.   For example, if a student discloses to an employee that they have been sexually harassed or discriminated against because of gender or if an employee is told about a sexual harassment complaint or report involving a colleague, the employee is obligated to inform the Title IX Coordinator, regardless of the employee’s assessment of the report’s merit.  The employee should not attempt to investigate the matter themselves. Student employees of the Student Affairs division, such as Resident Assistants, are included in this reporting obligation, for matters that they become aware of in the course of their university employment. Lawyers or others who obtain information through any communication considered privileged by state or federal law are not obligated to report that information.    

 IV. Enforcement

Any member of the campus community who violates this policy is subject to discipline, up to and including termination of employment or permanent dismissal.   Disciplinary action against an employee or student will be taken in accordance with the applicable state or university procedure and policy:

  • For students, the Student Discrimination, Harassment, Retaliation and Sexual Misconduct Grievance Procedure.
  • For faculty and staff, the Employee Discrimination, Harassment, Retaliation Complaint Procedure.

For third parties, the response will depend on the nature of the individual’s relationship to the university and the nature of the conduct.  The Employee Grievance Procedure may be used.   

V. Approval and Amendment

This policy was approved by the President.  Minor, technical revisions, such as to update contact information, may be made by the Chief Compliance Officer.  Revisions or amendments to the definitions in Section III require the approval of the Faculty Assembly, provided that the Board of Visitors retains the ultimate authority over institutional policies.  

This policy was amended by the President effective July 1, 2015, to (1) comply with Virginia Code 23-9.2:15 by revising the reporting provisions to require reporting of sexual violence occurring on university’s Clery Act geography and by eliminating the provision permitting initial reporting of incidents without identifying details, (2) make changes conforming to amendments to other policies and (3) make grammatical corrections and formatting improvements. 

This policy was amended by the President effective May 1, 2016, to (1) clarify the scope of the policy, (2) clarify the relationship of the policy to speech, particularly provisions relating to harassing conduct that has not risen to the level of a policy violation, (3) update office names, and (4) update appendices and cross-references including to reflect amendments to other policies, and (5) add the Faculty Assembly approval right. 

The policy was amended by the President effective August 14, 2020 to (1) establish the purpose of the policy (2) define types of discriminatory conduct and protected groups (3) clarify when a faculty or staff member is required to make a mandatory report of discrimination, harassment or retaliation.  

VI. Related Documents, Policies, and Procedures

Policy Prohibiting Sexual Harassment, Gender-Based Harassment and Sexual Misconduct

Employee Discrimination, Discriminatory Harassment, and Retaliation Complaint Procedure

Student Discrimination, Discriminatory Harassment, and Retaliation Complaint Procedure 


Disability and Religious Accommodation Procedures

Employee Reasonable Accommodation Policy and Procedure

Student Accommodation Policy and Procedure

Guidelines for Accommodation of Religious Holidays

Student ADA/Rehabilitation Act Grievance and Appeal Procedure

Other

Crime Reporting Policy

 

 

[1] This provision reflects the rights granted by Section II of the Statement of Rights and Responsibilities and complies with Section 23-9.2:12 of the Code of Virginia.

[2] In limited situations, state or federal law requires or permits William & Mary to take “affirmative action” for people with disabilities, veterans, racial minorities, and women.  These actions are exempted from this policy.

[3] A disability can arise from either a mental or physical impairment.  For a full definition, see the Employee Reasonable Accommodation Policy and Procedure

[4] For more information regarding reasonable accommodations based on religion, see Guidelines for Religious Accommodations.  

[5] Specifically, the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. 

[6] https://www2.ed.gov/about/offices/list/ocr/firstamend.html

[7] Virginia Code Section 23-9.2:15(A).